A discharge at committal feels like the end. In law it is not. The decision whether to prosecute an indictable offence belongs to the Public Prosecutor, and the Criminal Code makes sure a magistrate’s view of the evidence does not take that decision away.
The power
(1) Where a court of summary jurisdiction has refused to commit a person for trial for an indictable offence, the Public Prosecutor may (a) consider the evidence contained in the depositions taken before the court (and any other relevant evidence); and (b) reduce into writing in an indictment a charge of any offence that the evidence appears to warrant.
(2) The indictment may be presented to the National Court by the Public Prosecutor or a State Prosecutor.
(3) The Public Prosecutor shall cause to be served on the accused or his lawyer (a) copies of the depositions taken at the committal; and (b) copies of statements of witnesses the prosecution intends to call, within such time before the trial as is reasonable to allow the accused to prepare his defence.
This is commonly called an ex officio indictment. The Public Prosecutor may rely on the same depositions the magistrate found insufficient, and on “any other relevant evidence”, including material gathered after the discharge.
Why a discharge is not an acquittal
The Magistrates’ Manual explains that a committal is an investigation into the strength of the prosecution case and not an act of adjudication, and that whether the defendant is directed to stand trial or is discharged, the prosecutorial discretion not to proceed further or to continue by way of direct indictment remains intact. Constitution section 37(8) protects a person who has been tried and convicted or acquitted from being tried again; a person discharged at committal has not been tried. Section 162 of the District Courts Act, which makes a certificate of dismissal a bar to further proceedings, applies to the dismissal of an information tried summarily, not to a discharge under sections 95 or 100 of a charge the District Court could never have tried.
The Public Prosecutor’s independence
In the performance of his functions under this Constitution the Public Prosecutor is not subject to direction or control by any person or authority.
Section 177 gives the Public Prosecutor control of the prosecution function, and section 4 of the Public Prosecutor (Office and Functions) Act spells it out. Two National Court decisions on committal appeals reflect that. In Yarume v Euga (1996) N1476 Akuram J held that the decision to indict by the Public Prosecutor after a committal should not be interfered with by the Courts; it is the duty and function of the Public Prosecutor. In Yawari v English (1996) N1433 the same judge repeated that a court is not to enter the arena of the duties and functions of the Public Prosecutor. See what the Public Prosecutor does.
The magistrate cannot be ordered to commit
The Criminal Code’s solution is the direct indictment precisely because the courts will not force the magistrate’s hand. In R v Wewak Resident Magistrate; Ex parte Dyer [1967–68] PNGLR 511 the prosecution sought an order under what is now section 13 of the District Courts Act compelling a magistrate who had found the evidence insufficient to commit. Minogue J refused: the provision is appropriate where a magistrate has improperly declined jurisdiction, not where he has exercised it and reached a conclusion; the court cannot order the magistrate to commit or to form a contrary opinion. Nor can the State appeal a discharge; section 219(2) denies the State an appeal against the dismissal of an information.
Safeguards for the accused
| Protection | Source |
|---|---|
| Service of the depositions and witness statements a reasonable time before trial | Criminal Code s 526(3) |
| Full trial before a judge, with the presumption of innocence and proof beyond reasonable doubt | Constitution s 37(4) |
| Bail, applied for in the National Court | Bail Act ss 6, 9; see bail in the National Court |
| Application to the trial judge to stay for abuse of process in an extreme case | The National Court’s inherent jurisdiction; Wartoto v The State (2015) SC1411 confines this to the criminal court itself |
| Nolle prosequi if the Public Prosecutor later decides not to proceed | Criminal Code s 527 |
Ex officio indictments are the exception. In most cases a discharge means the Public Prosecutor, on reading the depositions, will agree with the magistrate, and section 525(3) requires a written declaration and release from custody where the Public Prosecutor declines to lay a charge after a committal. A discharged defendant who is not indicted within a reasonable time can treat the matter as closed, and the exhibits are returned under section 121(1)(b) of the District Courts Act. What the discharge does not do is create a legal bar.
Schedule 2 offences
The same principle applies to a Schedule 2 offence dealt with by committal because the Public Prosecutor did not elect summary trial. If the Public Prosecutor did elect and the Principal Magistrate tried the charge and dismissed it, that is an acquittal, and section 219(2) and Constitution section 37(8) both prevent a second prosecution. See indictable offences triable summarily.
The District Courts Act is not on PacLII; it is available on vLex.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.